# C_2018427EN.01000801.xml

| 26.11.2018 | EN | Official Journal of the European Union | C 427/8 |
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26.11.2018

EN

Official Journal of the European Union

C 427/8

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Request for a preliminary ruling from the Sąd Najwyższy (Poland) lodged on 9 August 2018 — DŚ v Zakład Ubezpieczeń Społecznych Oddział w Jaśle

(Case C-522/18)

(2018/C 427/12)

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Applicant: DŚ

Defendant: Zakład Ubezpieczeń Społecznych Oddział w Jaśle

Questions referred

| 1. | Should the second sentence of Article 19(1) TEU, in conjunction with the third sentence of Article 4(3) TEU and Article 2 TEU, the third paragraph of Article 267 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union (CFR), be interpreted as meaning that the principle of the irremovability of judges, forming part of the principle of effective judicial protection and of the principle of the rule of law, is infringed in the case where a national legislature lowers the retirement age of judges of the court of last instance in a Member State (for example, from 70 to 65 years) and applies the new lower retirement age to judges in active service, without leaving the decision on whether to take advantage of the lower retirement age to the sole discretion of the judge concerned? |
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1.

Should the second sentence of Article 19(1) TEU, in conjunction with the third sentence of Article 4(3) TEU and Article 2 TEU, the third paragraph of Article 267 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union (CFR), be interpreted as meaning that the principle of the irremovability of judges, forming part of the principle of effective judicial protection and of the principle of the rule of law, is infringed in the case where a national legislature lowers the retirement age of judges of the court of last instance in a Member State (for example, from 70 to 65 years) and applies the new lower retirement age to judges in active service, without leaving the decision on whether to take advantage of the lower retirement age to the sole discretion of the judge concerned?

| 2. | Should the second sentence of Article 19(1) TEU, in conjunction with the third sentence of Article 4(3) TEU and Article 2 TEU, the third paragraph of Article 267 TFEU and Article 47 of the CFR, be interpreted as meaning that the principle of the rule of law and the standard of independence required to ensure effective judicial protection in cases involving EU law are infringed in the case where a national legislature, in breach of the principle of the irremovability of judges, lowers the normal age at which a judge of the court of last instance in a Member State may hold a judicial post from 70 to 65 years, such that continuance in that post is dependent on the discretionary consent of an executive body? |
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2.

Should the second sentence of Article 19(1) TEU, in conjunction with the third sentence of Article 4(3) TEU and Article 2 TEU, the third paragraph of Article 267 TFEU and Article 47 of the CFR, be interpreted as meaning that the principle of the rule of law and the standard of independence required to ensure effective judicial protection in cases involving EU law are infringed in the case where a national legislature, in breach of the principle of the irremovability of judges, lowers the normal age at which a judge of the court of last instance in a Member State may hold a judicial post from 70 to 65 years, such that continuance in that post is dependent on the discretionary consent of an executive body?

| 3. | Should Article 2, in conjunction with Article 6(1), of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (1) be interpreted as meaning that lowering the retirement age of judges of the court of last instance in a Member State, and making the possibility for an existing judge of that court who has reached the new lower retirement age to continue in his post dependent on the consent of an executive body, constitute discrimination on grounds of age? |
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3.

Should Article 2, in conjunction with Article 6(1), of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (1) be interpreted as meaning that lowering the retirement age of judges of the court of last instance in a Member State, and making the possibility for an existing judge of that court who has reached the new lower retirement age to continue in his post dependent on the consent of an executive body, constitute discrimination on grounds of age?

| 4. | Should Article 2, Article 9 and Article 11 of Directive 2000/78/EC, in conjunction with Article 21 and Article 47 of the CFR, be interpreted as meaning that, in the case of discrimination on grounds of age of the judges of the court of final instance in a Member State, consisting in the lowering of the retirement age from the current 70 years to 65 years, that court — adjudicating in any case with the participation of a judge affected by the effects of such discriminatory national provisions who has not expressed a willingness to take advantage of the new retirement age — is required, when deciding the preliminary issue of the composition of the court, to refuse to apply national provisions that are contrary to Directive 2000/78/EC and Article 21 of the CFR and to continue to adjudicate with the participation of that judge where that is the only effective means of ensuring effective judicial protection of the rights of judges under EU law? |
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4.

Should Article 2, Article 9 and Article 11 of Directive 2000/78/EC, in conjunction with Article 21 and Article 47 of the CFR, be interpreted as meaning that, in the case of discrimination on grounds of age of the judges of the court of final instance in a Member State, consisting in the lowering of the retirement age from the current 70 years to 65 years, that court — adjudicating in any case with the participation of a judge affected by the effects of such discriminatory national provisions who has not expressed a willingness to take advantage of the new retirement age — is required, when deciding the preliminary issue of the composition of the court, to refuse to apply national provisions that are contrary to Directive 2000/78/EC and Article 21 of the CFR and to continue to adjudicate with the participation of that judge where that is the only effective means of ensuring effective judicial protection of the rights of judges under EU law?

| 5. | Should the second sentence of Article 19(1) TEU, in conjunction with the third sentence of Article 4(3) TEU and Article 2 TEU, Article 267 TFEU and Article 47 of the CFR, be interpreted as meaning that the rule of law is to be regarded as such a fundamental value of the European Union that, where doubts arise as to the compatibility with that value and with the principle of effective judicial protection arising from it — as regards the independence of the courts and the judiciary — of national provisions which lower the retirement age of judges as described in Questions 1 and 2, a national court must have the power to suspend of its own motion the application of national provisions which infringe the principle of the irremovability of judges in relation to all judges coming within the scope of those provisions? |
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5.

Should the second sentence of Article 19(1) TEU, in conjunction with the third sentence of Article 4(3) TEU and Article 2 TEU, Article 267 TFEU and Article 47 of the CFR, be interpreted as meaning that the rule of law is to be regarded as such a fundamental value of the European Union that, where doubts arise as to the compatibility with that value and with the principle of effective judicial protection arising from it — as regards the independence of the courts and the judiciary — of national provisions which lower the retirement age of judges as described in Questions 1 and 2, a national court must have the power to suspend of its own motion the application of national provisions which infringe the principle of the irremovability of judges in relation to all judges coming within the scope of those provisions?

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(1)  OJ 2000 L 303, p. 16.

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